In 2008, the New Jersey Supreme Court found that the Alcotest 7110 MKIII-C was scientifically reliable and could be admitted into evidence to prove blood alcohol concentration in DWI cases throughout New Jersey. For the past several years, police departments in parts of New Jersey have been using a new device, the Alcotest 9510. This device has never been found by any New Jersey court to be scienfically reliable. In 2023, the New Jersey Supreme Court certified one case, State v. Cunningham, to determine the scientific reliability of the Alcotest 9510.

While Cunningham was pending, a stay was put into effect for all DWI cases in New Jersey where a BAC reading had been obtained using the Alcotest 9510. This stay has caused a large backlog of cases  as the lawyers for Ms. Cunningham and for New Jersey engaged in motion practice. The fight was mostly about who would pay for experts. The lawyer for Ms. Cunningham argued that the state should pay for the scientific experts since Ms. Cunningham was really standing in for a whole class of people, i.e., every DWI defendant in New Jersey whose BAC was measured by the Alcotest 9510.

Ms. Cunningham's argument was correct, in my view, but the New Jersey Supreme Court saw it differently. Since Ms. Cunningham, quite reasonably, was not willing to bear the cost of paying for experts out of her own pocket, the Court dismissed her challenge to the scientific reliability of the 9510 and lifted the Cunningham stay. Accordingly, DWI cases relying on the Alcotest 9510 to prove BAC are now allowed to proceed.

Importantly, the scientific reliability of the Alcotest 9510 has still not been established. The reliability and admissibility of 9510 evidence in New Jersey remains to be decided. Given the amount of money and effort the State of New Jersey has invested in the Alcotest 9510, it seems likely that it will eventually be deemed admissible in New Jersey to prove blood alcohol concentration. While this issue remains unsettled, it may be possible to negotiate advantageous plea bargains in cases relying on an Alcotest 9510 reading.